A Constitutional Balancing Act: Courts-Martial as an Exercise in Diplomacy

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In 1957, Supreme Court Justice Hugo Black observed that “[t]raditionally, military justice has been a rough form of justice.” Extraterritorial military jurisdiction charges defendants under the Uniform Code of Military Justice (UCMJ) and prosecutes through courts-martial. It also abrogates presumed fair trial guarantees and can impede fairness to the defendant. This Note explores the legal ambiguity surrounding the U.S. government’s presence in foreign countries—a presence that includes active-duty service members, dependents, contractors, and former military. A recent case in which the defendant, a retired Marine, committed an overseas crime with no military nexus or “service connection” and was subsequently court-martialed, makes clear that retirees fall into a jurisdictional gray area. This Note asserts that military jurisdiction should be employed narrowly, rather than as a broad diplomatic tool aimed at fostering American expansionism. The question remains, however, whether policy and diplomatic considerations justify the tradeoffs of encroaching on the constitutional protections afforded in civilian federal criminal justice proceedings. The UCMJ, as it is used—and arguably, abused—is a tool in the government’s toolbelt which calls for careful scrutiny.

Alexis C. Archer

J.D., Columbia Law School, 2022